January 1, 1970 · FLEMING | NOLEN | JEZ, L.L.P.
Several significant developments have emerged in the metal-on-metal hip litigation and health crisis in the past few months:
First, nearly three years after the initial DePuy ASR hip recall from August 2010, Judge David Katz has scheduled two “bellweather” trials for May 6, 2013 and July 8, 2013. These trials are expected to have a substantial impact on the thousands of other ASR cases filed across the country in California, Ohio, and New Jersey. This news comes on the heels of three settlements in cases that were set for trial on August 3rd, 2012. The terms of those settlements are confidential. The hope is that these trials will encourage DePuy and Johnson & Johnson to accelerate the settlement process with remaining plaintiffs across the country. Johnson & Johnson is reported to have spent about $800 million so far concerning its ASR hip failures.
Meanwhile, in the DePuy Pinnacle litigation, Judge Kinkeade has issued a scheduling order to “get the ball rolling.” Depositions are to begin in January 2013, and the first bellweather trials are tentatively scheduled for September 2014. This litigation is expected to take significantly longer than the ASR lawsuits. There are currently over 1800 Pinnacle lawsuits pending against DePuy and Johnson & Johnson with more likely to come. No recall has been issued for DePuy Pinnacle hips at this time.
Plaintiffs are also seeking the formation of a Multi-District Litigation to consolidate claims against Biomet, which has also manufactured metal-on-metal hips. A motion was filed on July 27, 2012 to the Judicial Panel for Multi-District Litigation (“JPML”). The motion states that the FDA has already received more than 450 adverse reports about these hips. This litigation is currently in the beginning stages. The JPML has scheduled oral argument for this motion on September 20, 2012.
Further, a new study released at the end of July 2012 by David Fabi, MD; Brett Levine, MD; Wayne Paprosky, MD; Craig Della Valle, MD; Scott Sporer, MD; Gregg Klein, MD; Harlan Levine, MD; Mark Hartzband, MD concluded that most hip metal-on-metal hip revisions occur within the first three years of the initial hip replacement surgery (92%). Moreover, 78% of hip revision surgeries occurred within the first two years after the initial procedure. In other words, metal-on-metal hips not only fail at an alarming rate, but also fail very quickly in most instances. The study is consistent with FDA’s findings from its metal-on-metal hip panel conducted June 27-2. That 18 member panel concluded there are few if any reasons for metal-on-metal hips to be used in the future. The panel also recommended patients with metal-on-metal hips have x-rays and blood testing done to determine if the hip itself is the cause of their injuries.
The next few months as well as early 2013 are shaping up to be a critical time for patients adversely affected by metal-on-metal hips.